Church Records

Legal Developments

Discarding Relevant Video Evidence Leads to $500,000 Judgment Against School

This case illustrates why churches should preserve footage if a lawsuit is filed or anticipated.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Churches that discard potentially relevant records, including video footage, in a pending or threatened lawsuit may be subject to potentially severe sanctions by a court.

Some churches have installed video cameras on their premises as a way to detect criminal activity. In some cases, video cameras are installed in the church office to catch financial improprieties. But the most common use of this technology is to deter incidents of child abuse and to identify perpetrators.

Whatever the reason for using video cameras, church leaders should be aware of their legal obligation to preserve such evidence in the event of litigation.

A Washington state court case illustrates the importance of preserving video camera recordings in the event of litigation.

Background

A student (the “victim”) started first grade at a public school in December 2016. Another student (the “classmate”) was in the victim’s class and they rode the same school bus. On May 22, 2017, the victim told his mother that the classmate sexually abused him “almost every day” at school. He said the abuse had been happening in a school bathroom. The same day, the victim’s parents reported this to his teacher and a school counselor, who then informed the local police department.

During the 2016–2017 school year, the school used eight surveillance cameras. Cameras one through seven were outside the school building, and camera eight was inside a closet. Cameras one through four were not operating during the time the victim and the classmate attended school together.

The school buses also had surveillance cameras. The school installed a new camera system in its buses in April 2017, and that system retained footage for about 30 days. With no action taken to preserve footage, the camera systems automatically overwrote old footage to free up storage capacity. The school cameras retained footage for at least 30 days, but it could retain footage for up to 6 months.

A school-set schedule set forth parameters for retaining camera footage. The schedule prohibits the destruction of any footage subject to “ongoing or reasonably anticipated litigation.”

On June 6, 2017, the principal emailed the victim’s mother, confirming that, based on the principal’s investigation, inappropriate touching occurred. Up to this point in time, the school took no steps to preserve any video footage.

Instructed to preserve documents

On June 19, 2017, the school received a letter from a law firm informing it that it had been retained by the victim’s mother to represent the victim and requesting that it preserve documents related to the victim and the classmate, including surveillance video footage from the school and the buses from December 2016 onward.

On June 21, 2017, school employees received an internal litigation hold letter from its attorney instructing them to preserve documents relating to the victim and to suspend standard document destruction programs. The letter explained that “documents” included electronic information and that failure to preserve documents could lead to “severe sanctions.” Even still, the court noted, the school “did not take any steps to preserve video footage.”

On October 10, 2017, the victim sued the school. On November 9, 2017, the victim sought information, documents, and video recordings related to the victim and the classmate. The victim’s lawyers asked the school to identify:

  • “[E]ach document, which you possess or have the legal right to obtain, pertaining to [the victim] or [the classmate].”
  • “[E]ach document, which you possess or have the legal right to obtain, pertaining to video or audio recordings of [the victim] or [the classmate] on the premises of [the school] or on your school buses during the 2016–17 school year, including without limitation video recordings, audio recordings, and electronically stored information.”
  • “[E]ach document, which you possess or have the legal right to obtain, pertaining to your use of video or audio recording equipment on school buses, including without limitation identification of buses outfitted with recording equipment, procedures for use of the equipment, review processes for recording media, use of the equipment in documenting instances of inappropriate student behavior, and procedures for proper disposal of recording media.”

The law firm requested, “If any such document was, but is no longer, in [the school’s] possession …, please state what disposition was made of the document.” The firm’s request defined “document” to include “video recording[s].” The responses were due December 9, 2017.

For the first time, the school acted on December 8, 2017, to preserve surveillance camera footage. The school responded to the prior discovery requests by simply stating that it had no evidence responsive to the requests.

The plaintiff asked the court to order the school to provide “complete and nonevasive answers,” and on June 7, 2018, the trial court ordered the school to identify and produce all documents, including videos, related to the victim and the classmate by June 27, 2018. The school did not comply with this order.

The school “repeatedly violated discovery rules”

The trial court concluded that the school had “spoliated” school and bus camera footage. Merriam-Webster defines “spoliation” to mean “the act of plundering,” “the state of having been plundered especially in war,” or “the act of injuring especially beyond reclaim.”

The trial court also concluded that the school “repeatedly violated discovery rules and the court’s discovery orders.” The court granted a default judgment against the school and assessed damages at $500,000.

What this means for churches

Churches that operate surveillance cameras are certainly free to delete footage after a reasonable time if no actual lawsuit is pending and none is anticipated.

But once a lawsuit is filed, or one is anticipated based on facts known to church leadership, it is important to preserve all potentially relevant evidence, including documents, emails, videos, and audio recordings. A failure to do so may constitute “spoliation of evidence” which, as this case illustrates, can result in severe penalties, including a default judgment and monetary damages.

J.K. v. Bellevue School District, 500 P.3d 138 (Wash. App. 2021)

Legal Developments

Religious Corporation’s Attempt to Block IRS Summons Rejected by Federal District Court

This case provides a helpful review of some of the protections of the Church Audit Procedures Act that were set forth in section 7611 of the tax code.

Richard R. Hammar, Attorney, CPA
Bio

Key point. The tax code provides several protections available to churches in the event the IRS serves notice of a “church tax inquiry” or “church tax examination.”

A federal district court in South Carolina rejected an attempt by a religious corporation to block an IRS summons seeking the production of the corporation’s bank records at eight banks.

A religious corporation (the “plaintiff”) was incorporated as a nonprofit entity in 1972. In its early years, the plaintiff’s primary function was to produce and broadcast a weekly radio program. At some point, the plaintiff began a weekly faith-based television program. In 2015, the plaintiff was informed by the IRS that it had been selected for audit and that the IRS would be seeking access to its bank records. The plaintiff’s accountant informed the IRS agent in charge of the audit that the plaintiff was claiming church status and all the protections of the Church Audit Procedures Act (section 7611 of the tax code). In response, the IRS sent the plaintiff a “notice of church tax inquiry” listing the following areas of concern:

  • Whether the plaintiff had engaged in excess benefit transactions with disqualified persons. The IRS noted that the plaintiff’s chief officer was paid $371,445 in “reportable compensation” plus an additional $48,000 in “other compensation,” described as a parsonage allowance. The next highest paid employee received compensation of $125,596, consisting of a base salary and “commission income based on a fixed percentage of broadcast placement revenue.”
  • Whether the plaintiff had received unrelated (and unreported) business income from the rental of various properties.
  • Whether all compensation was properly reported on W-2s.
  • Whether the plaintiff’s claim of church status was warranted.

The notice asked for several items of information regarding the plaintiff’s religious activities, revenue and expenses, and detailed information on compensation paid to the officers. The plaintiff did not respond to these inquiries on the ground that the IRS officer who signed the notice was “director, exempt organizations,” and not a “high level IRS official” required to sign any notice of church tax inquiry by section 7611 of the tax code.

The IRS informed the plaintiff that “because you did not provide the information we requested, we still think an examination of the organization’s books and records may be necessary.” This letter identified the same concerns previously noted (possible excess benefit transactions, receipt of unrelated business income, failure to report all compensation, and claim of church status).

Rather than further pursuing a church tax examination, the IRS issued summonses to the plaintiff’s banks in 2016. The plaintiff sought to quash the eight summonses on the following grounds:

(1) The purpose was improper because the summonses were issued in support of a church tax inquiry that was not properly authorized under section 7611.

The court noted that section 7611 of the tax code, which incorporates the Church Audit Procedures Act, defines a “church tax inquiry” as “any inquiry to a church to serve as a basis for determining” whether the church is exempt from tax due to its status as a church or is subject to taxation for some other reason (e.g., because it is carrying on an unrelated trade or business). IRC 7611(h)(2).

Section 7611 defines a “church tax examination” as any examination of (A) Church Records at the request of the IRS, or (B) the religious activities of any church. IRC 7611(h)(3). “Church Records” is defined to exclude records acquired “pursuant to a summons to which Section 7609 applies.” IRC 7611(h)(4). “Thus, church tax inquiries and church tax examinations are two distinct investigatory tools used for the same purpose and are directed to the church or to records in the church’s custody (as opposed to church-related records held by a third party).”

The court continued:

Presumably because church examinations are more intrusive, section 7611 provides that a church must be offered a conference before a church tax examination is conducted. Church records and activities may, moreover, only be examined “to the extent necessary to determine” liability for tax or whether the entity was, in fact, operating as a church during the relevant period ….

Third-party summonses are governed by section 7609, not section 7611, even when the summons is issued in connection with a church tax inquiry …. Legislative history confirms that section 7611 is inapplicable to third-party summonses …. The House Conference report [in connection with section 7609] stated the “church audit procedures” did not apply to examination of the types of third-party records sought here, explaining as follows: “Records held by third parties (e.g., cancelled checks or other records in the possession of a bank) are not considered church records for purposes of the conference agreement. Thus … the IRS is permitted access to such records without regard to the requirements of the church audit procedures.

(2) The IRS failed to provide the plaintiff with the required tax inquiry notice before issuing the summonses.

The plaintiff claimed that the IRS had failed to provide proper notice that it might seek information from third parties. The court disagreed, noting that the IRS has provided the plaintiff with this information by providing it with a copy of IRS Publication 1, which advises taxpayers that the IRS may “sometimes talk with other persons if we need information that you have been unable to provide.”

(3) The summonses violate section 7611’s prohibition on repetitive church inquiries.

The court noted that “if any church tax inquiry or examination with respect to any church is completed and does not result in [an adverse consequence] no other church tax inquiry or examination may begin with respect to such church during the applicable 5-year period unless such inquiry or examination is approved in writing by the Treasury Secretary or does not involve the same or similar issues involved in the preceding inquiry or examination.” IRC 7611(f)(1).

The court concluded that occasional correspondence from the IRS that did not constitute church tax inquiries did not count in applying this provision.

What this means for churches

This case provides a helpful review of some of the protections of the Church Audit Procedures Act that were set forth in section 7611 of the tax code. They may be summarized as follows:

Tax inquiries and examinations of churches

Congress has imposed special limitations, found in section 7611 of the tax code, on how and when the IRS may conduct civil tax inquiries and examinations of churches. The IRS may only initiate a church tax inquiry if an appropriate high-level Treasury Department official reasonably believes, based on a written statement of the facts and circumstances, that the organization: (a) may not qualify for the exemption or (b) may not be paying tax on an unrelated business or other taxable activity.

Restrictions on church inquiries and examinations

Restrictions on church inquiries and examinations apply only to churches and conventions or associations of churches. They don’t apply to related organizations. For example, the rules don’t apply to schools that, although operated by a church, are organized as separate legal entities. Similarly, the rules don’t apply to integrated auxiliaries of a church.

Restrictions on church inquiries and examinations do not apply to all church inquiries by the IRS. The most common exception relates to routine requests for information. For example, IRS requests for information from churches about filing of returns, compliance with income or Social Security and Medicare tax withholding requirements, supplemental information needed to process returns or applications, and other similar inquiries are not covered by the special church audit rules.

Restrictions on church inquiries and examinations don’t apply to criminal investigations or to investigations of the tax liability of any person connected with the church, such as a contributor or minister.

The procedures described in section 7611 are used in initiating and conducting any inquiry or examination into whether an excess benefit transaction has occurred between a church and a pastor or other insider.

Audit process

The sequence of the audit process is:

  • If the reasonable belief requirement is met, the IRS must begin an inquiry by providing a church with written notice containing an explanation of its concerns.
  • The church is allowed a reasonable period in which to respond by furnishing a written explanation to alleviate IRS concerns.
  • If the church fails to respond within the required time, or if its response is not sufficient to alleviate IRS concerns, the IRS may, generally within 90 days, issue a second notice, informing the church of the need to examine its books and records.
  • After issuance of a second notice, but before commencement of an examination of its books and records, the church may request a conference with an IRS official to discuss IRS concerns. The second notice will contain a copy of all documents collected or prepared by the IRS for use in the examination and subject to disclosure under the Freedom of Information Act, as supplemented by code section 6103 relating to disclosure and confidentiality of tax return information.
  • Generally, examination of a church’s books and records must be completed within two years from the date of the second notice from the IRS.

If at any time during the inquiry process the church supplies information sufficient to alleviate the concerns of the IRS, the matter will be closed without examination of the church’s books and records. There are additional safeguards for the protection of churches under section 7611. For example, the IRS can’t begin a subsequent examination of a church for a five-year period unless the previous examination resulted in a revocation, notice of deficiency or assessment, or a request for a significant change in church operations, including a significant change in accounting practices. Bible Study Time v. United States, 2017 WL 897818 (D.S.C. 2017).

Legal Developments

Members’ Right to Inspect Church Records

Members may inspect records only if they have a “proper purpose” for doing so.

Richard R. Hammar, Attorney, CPA
Bio

A Tennessee court ruled that church members were not legally entitled to inspect certain records of their church on the basis of a provision in the state nonprofit corporation law giving members a right of inspection, since they lacked a "proper purpose" for their request.

The Tennessee nonprofit corporation law specifies that members have a legal right to inspect "accounting records" only if "a demand is made in good faith and for a proper purpose, the member describes with reasonable particularity the purpose and the records the member desires to inspect; and the records are directly connected with the purpose for which the demand is made."

Several members of a church sought to inspect the church's financial records as part of their investigation into financial mismanagement by the pastor and other church leaders. The church resisted this request, arguing that the members' request failed to satisfy all of the conditions required for inspection, and turning over the records would violate the church's constitutional right to freely exercise its religion. The trial court ruled that the members had a proper purpose since they were investigating suspected financial mismanagement, and therefore had a "property interest in the church assets."

A state appeals court reversed the trial court's decision, and ruled that the members failed to satisfy the requirements of the nonprofit corporation law for inspection of the church's financial records:

The members relied upon their "property rights in the church building and its funds" as the proper purpose. The purpose presented by the members … was to determine their property rights. However … unless there is an agreement to the contrary in some bylaw or associational agreement, any decision about control of church property is to be decided by a majority vote of the church. It has likewise been found that church members have no property rights in their contributions to a church. Consequently, the members have no property rights in the church building or its assets. This is in accord with the generally accepted law on the subject. Generally, a nonprofit corporation, and not its members, owns the property of the nonprofit. Absent a departure by the majority from doctrine accepted by the articles of incorporation, the minority has no right to claim church property from a majority at the church membership.

The court acknowledged that the church "had the burden of proof that the members' purpose was not proper." However, "the members did not have a property interest in the church assets, which was the reason relied upon before the trial court. [The law] requires the member to describe the purpose with particularity. Whether access would have been required had another purpose been proffered by the members is speculative at best."

What this means for churches

Tennessee, like most states, has a nonprofit corporation statute that empowers members of nonprofit corporations to inspect certain corporate records so long as they have a "proper purpose."

This court reached the remarkable conclusion that members who want to inspect a church's financial records in order to investigate suspected financial mismanagement do not have a proper purpose as a result of their "property rights in the church building and its funds" since (1) "unless there is an agreement to the contrary in some bylaw … any decision about control of church property is to be decided by a majority vote of the church"; and (2) "church members have no property rights in their contributions to a church," presumably since charitable contributions are gifts that by definition divest donors of any legal interest in their contributions unless there is a written agreement to the contrary. As a result, the members in this case had no property rights in the church building or its assets.

Two Rivers Baptist Church v. Sutton, 2010 WL 2025444 (Tenn. App. 2010).

Legal Developments

Is a Church Obligated to Share Member Records?

State nonprofit corporation law may override protection of privacy.

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A Texas court ruled that persons who have been dismissed from membership in a church no longer have a right under the state nonprofit corporation law to inspect church records.

A married couple (the "plaintiffs") became increasingly dissatisfied with various ecclesiastical and secular church policies, including how the church handled its finances. The plaintiffs requested access to the church's financial books and records pursuant to a provision in the state nonprofit corporation law giving members a right to inspect corporate books and records. Their main concern was how the church had disposed of a donation they made to the church's building fund a few years earlier. In particular, they wanted to determine if the church had spent their designated donation for some other purpose.

Dissatisfied with the church's response, the plaintiffs sent the church a second request, through their attorney, to examine the church's financial records. The church allowed them to see some financial records, but not enough to satisfy them. A few days later, in accordance with its bylaws, the church revoked the plaintiffs' membership. The church insisted that this action was not the result of the financial inquiries, but rather due to the plaintiffs' longstanding and increasingly vehement disagreements with the church's ecclesiastical doctrines.

The church claimed that it made many efforts over the years to address the plaintiffs' concerns, including arranging for special meetings with an independent mediator, but ultimately these efforts failed. The church's members voted to remove the plaintiffs as members at a specially called business meeting.

The plaintiffs sued their former church. They alleged that while they were allowed to see some records, they were not permitted to copy them. They asked the court to order an audit of the church's financial records for the previous three years "to verify that [the church's] expenditures are for church-related purposes," "to determine whether or not the acts of the pastor and the board of deacons are illegal, oppressive, or fraudulent," and "to determine whether or not corporate assets have been misapplied or wasted."

The church asked the court to dismiss the lawsuit on the ground that the plaintiffs' claims implicated religious matters that were beyond the jurisdiction of the civil courts. It also argued that the plaintiffs lacked "standing" to pursue their claims since they were no longer members and had no legal right to inspect records or dictate church practices. Alternatively, it asked the court to order the financial records to be turned over to an independent CPA for an audit, at the church's expense.

The plaintiffs also sued each member of the church's board of deacons, claiming that (1) the deacons themselves had denied the plaintiffs access to the church's books and records; (2) the plaintiffs' monetary donations to the church "were not used for their intended purposes"; (3) the deacons, jointly and severally, had "misappropriated and converted" the plaintiffs' donations of money and property; and (4) the deacons had "excommunicated" the plaintiffs for seeking access to the church's financial records.

The lawsuit claimed that the deacons were liable on the basis of conversion, breach of fiduciary duty, misapplication of fiduciary property, and fraud. The church provided a legal defense for the deacons because of a provision in the church's bylaws obligating the church to indemnify the deacons.

The trial court accepted the church's proposal of an independent audit, and indicated that it might shift the cost to the plaintiffs if the audit uncovered no wrongdoing. The audit revealed some gaps in the church's records but no fraud. Consequently, the church filed a motion to require the plaintiffs to reimburse its audit expenses, which totaled $21,380.

The same day, the church again asked the court to dismiss the case on the grounds that (1) the court lacked jurisdiction over the plaintiffs' claims because they implicated ecclesiastical matters; (2) the audit conclusively established that the church had not engaged in wrongdoing; (3) the plaintiffs lacked standing and failed to allege a viable cause of action. The court dismissed all claims against the church and its deacons, and ordered the plaintiffs to reimburse the church for the cost of the audit.

The church and its deacons later asked the court to impose sanctions against the plaintiffs on the ground that their lawsuits were "frivolous, groundless, and brought in bad faith as a form of retaliation." The church and deacons requested sanctions equal to their attorney's fees. The court agreed that sanctions were appropriate, and ordered the plaintiffs to reimburse the church and deacons for all legal expenses incurred in defending against the plaintiffs' lawsuits. The plaintiffs appealed all of the trial court's rulings.

A state appeals court agreed with the trial court's dismissal of all of the plaintiffs' claims, and also upheld the trial court's award of sanctions to the church and deacons, and the reimbursement of the expenses of the independent audit.

What This Means For Churches

Church leaders often wrestle with the question of whether or not to honor requests by members to inspect various kinds of corporate records. Here are some points that church leaders should consider:

  1. Most state nonprofit corporation laws give the members of incorporated churches a legal right to inspect books and records for a proper purpose and a reasonable time. The right of inspection is not absolute. It only exists if a church is incorporated under a state nonprofit corporation law that gives members such a right.
  2. The right of inspection only extends to members. Several courts have ruled that members whose membership is revoked no longer have the legal authority to inspect church records.
  3. The right of inspection only extends to those records specified in the statute creating the right.
  4. Most such laws provide that the member may inspect documents "for a proper purpose" at a "reasonable time."
  5. The court concurred with the church's suggestion to have an independent CPA conduct an audit of the church's financial records in order to ascertain the validity of the plaintiffs' claim that their designated contributions to the church were not being spent according to their designations. The court also concluded that the cost of the audit could be assessed against the plaintiffs since it failed to turn up any evidence that supported their claims of financial mismanagement and fraud.
  6. The case illustrates the possible imposition of sanctions against plaintiffs who bring frivolous lawsuits against churches or other defendants. Generally, trial courts can impose sanctions "on a party, its attorney, or both for filing a groundless instrument in bad faith or for the purpose of harassment." The term "groundless" is defined as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law." Sanctions may include costs and attorney's fees incurred to defend against the groundless suit. It is not uncommon for churches to be the targets of frivolous lawsuits. Church leaders, and their attorneys, should keep in mind this remedy in egregious cases. Though rarely awarded, the threat of sanctions can be a powerful deterrent.
  7. Some churches do not have members. Rather, they are governed by the lead pastor and in some cases an advisory board appointed by the pastor. Nonprofit corporation laws empowering members to inspect corporate records would not apply to churches with this governance model.
  8. Any decision to withhold documents from a member should be made with the advice of an attorney.

    9. 2010 WL 2010792 (Tex. App. 2010).

Legal Developments

When Can Members Inspect Church Records?

Know how to respond when a member of your church asks for access to your records.

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A New York court ruled that a church member had the legal authority to inspect church records despite the pastor's refusal to allow him to do so.

Most church leaders are not sure how to respond when a member asks to inspect church records. Do members have a legal right to have access to church records? If so, under what conditions? Are there exceptions? These are very relevant and important questions for which church leaders should have answers. A recent New York case addresses these issues and provides helpful guidance.

A church member (and former church officer) suspected that the senior pastor and several current church trustees diverted or misappropriated church funds. When his request to inspect church financial records was denied, he sued the church citing a provision in the state nonprofit corporation law authorizing members of nonprofit corporations to inspect specified corporate records.

The New York nonprofit corporation law contains the following language regarding the inspection of records:

Except as otherwise provided herein, every corporation shall keep, at the office of the corporation, correct and complete books and records of account and minutes of the proceedings of its members, board and executive committee, if any, and shall keep at such office or at the office of its transfer agent or registrar in this state, a list or record containing the names and addresses of all members, the class or classes of membership or capital certificates and the number of capital certificates held by each and the dates when they respectively became the holders of record thereof. A corporation may keep its books and records of account in an office of the corporation without the state, as specified in its certificate of incorporation. Any of the foregoing books, minutes and records may be in written form or in any other form capable of being converted into written form within a reasonable time. Any person who shall have been a member of record of a corporation for at least six months immediately preceding his demand … upon at least five days written demand shall have the right to examine in person or by agent or attorney, during usual business hours, its minutes of the proceedings of its members and list or record of members and to make extracts therefrom.

A trial court rejected the member's request to inspect corporate records, and the case was appealed. A state appeals court ruled that the member did have the right to inspect the church's financial records as a result of the above-quoted statute. It observed: "Not-For-Profit Corporation Law § 621 authorizes any person who is a member of a not-for-profit corporation for at least six months immediately preceding an unsuccessful demand to inspect the corporation's books and records to commence a special proceeding to compel the production of those books and records …. Contrary to the [trial court's] determination, the issue of whether the plaintiff, who seeks to enforce a statutory right, is entitled to the production of the church's books and records, can be determined by resort to neutral principles of law" involving no inquiry into church doctrine.

What this means for churches

This case provides church leaders with some useful insights into the meaning of state nonprofit corporation laws that give members a limited right to inspect corporate records. Consider the following:

  • The right of inspection is not absolute. It only exists if a church is incorporated under a state nonprofit corporation law that gives members such a right.
  • The right of inspection only extends to members.
  • The right of inspection only extends to those records specified in the statute creating the right.
  • Most such laws provide that the member may inspect documents "for a proper purpose" at a "reasonable time."
  • Members may lose the right to inspect church records if they are dismissed or suspended from membership pursuant to procedures specified in the church's bylaws or other governing document.
  • Some state nonprofit corporation laws may limit the right of inspection to records created during the current or previous year. Be alert to any such limitation under your state's law.
  • Any decision to withhold documents from a member should be made with the advice of an attorney.

Tae Hwa Yoon v. New York Hahn Wolee Church, Inc. 870 N.Y.S.2d 42 (N.Y.A.D. 2008).

Legal Developments

Membership and Reviewing Church Records

The Alabama Supreme Court ruled that church members who lost their membership lost their right as members to inspect church records.

Richard R. Hammar, Attorney, CPA
Bio

Key point 6-03.1.Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

The Alabama Supreme Court ruled that church members who lost their membership for violating a church bylaw ban on suing the church lost their right as members to inspect church records, and that the civil courts have the limited authority to determine if the church bylaws were duly adopted.

A dispute arose among the members of a church, which divided the congregation into two factions. One faction included the board of deacons (the "defendants"). An attorney for the other faction (the "plaintiffs") wrote a letter to the defendants, informing them that his clients wanted to exercise their legal right as members to inspect and copy the complete books, records, accounts and minutes of the church, including (1) church budgets; (2) all checking and savings accounts; (3) check registers; (4) bank statements; (5) certificates of deposit, money market funds, and other investments; (6) minutes of meetings of the trustees and deacons; (7) records of deposits, offerings collected at church services; and (8) donations, endowments or other records indicating sources of income. This request for inspection was prompted by the defendants' concern that various financial and property transactions entered into by the pastor and board of deacons had not been properly authorized by the church membership.

The defendants ignored this request to inspect records, which prompted the plaintiffs to ask a court to compel the defendants to respond. The defendants claimed that the First Amendment prevented the court from intervening in what amounted to an internal church dispute. While this case was pending, the board of deacons (who were members of the "defendant" faction) passed the following two resolutions which were then added to the church's "Standard Operating Procedures" (SOP):

Resolution #1. "Pursuant to biblical doctrine enumerated and commanded in 1 Corinthians 5:12 through 6:10 any and all members who bring or who are a party to a lawsuit, civil or otherwise, against the church or its leadership … shall be immediately placed on probation, without any further notice, and said probation shall operate as a removal from the membership rolls and an abolition of all memberships rights and privileges and shall not be allowed back to the church unless the pastor makes distinct stipulations otherwise."

Resolution #2. "Pursuant to Psalm 133:1-3, Proverbs 16:28, Proverbs 20:19, Proverbs 21:23, Proverbs 25:9, Romans 15:5-6, and in order to protect the unity and privacy of the church membership all church records shall remain confidential and shall not be distributed, inspected, viewed, copied, or otherwise viewed by any member, attendee, their agent, or any person without the express consent of both the pastor and deacons' board. The pastor and the deacons' board are the sole arbitrators of whether or not there is a proper purpose to grant an exception to this church rule. This section does not exclude or prohibit the pastor and deacons' board from viewing, distributing, or utilizing said records in the manner they believe necessary and proper for the pastor and the deacons' board to effectively operate the church in accordance with the Word of God."

A trial court ruled that the plaintiffs were members of the church, and that they had a legal right under the nonprofit corporation law to inspect the records of the church. The Alabama Nonprofit Corporation Act, under which the church had been incorporated, states: "All books and records of a corporation may be inspected by any member, director or officer, or his agent or attorney, for any proper purpose at any reasonable time." Ala. Code 10-3A-43. The Act defines a "member" as "one having membership rights in a corporation in accordance with the provisions of its articles of incorporation or bylaws." Ala. Code 10-3A-2(8). The court rejected the defendants' position that according to resolution #1 the plaintiffs no longer were members of the church because of the lawsuit they filed, and therefore they had no legal right to inspect church records. The case was appealed to the state supreme court.

The state supreme court noted that the Nonprofit Corporation Act (quoted above) "allows a nonprofit corporation to set forth, either in its articles of incorporation or in its bylaws, rules and procedures governing membership in the corporation." The church's constitution did not address membership qualifications. However, the defendants insisted that the church's "Standard Operating Procedures" constituted the church's bylaws, and that this document, as amended by the inclusion of resolution #1 (see above) effectively removed the plaintiffs as members of the church because of the lawsuit they filed.

The court agreed with the defendants' argument, assuming that the SOPs constitute the church's bylaws. But, it was not convinced that the SOPs in fact were the equivalent of bylaws. It pointed out that the plaintiffs alleged that (1) the SOPs were not the same as the church's bylaws, and (2) even if they were, the board of deacons did not have the authority to make membership termination decisions in the SOP. The court observed that "by claiming that the SOPs are not in fact the bylaws of the church and that resolution #1 was not validly passed, the plaintiffs are asserting that their membership has not been terminated by the appropriate authority in the church." The court conceded that "under limited circumstances" it could "review the actions of churches in expelling members [and] one of those circumstances is when a church member challenges whether her expulsion was the act of the authority within the church having the power to order it." The court concluded: "In this case, the court has jurisdiction for the limited purpose of determining whether the appropriate authority in the church has terminated the membership of the plaintiffs."

However, assuming that the SOPs amounted to the church's bylaws, the court concluded that the plaintiffs were no longer members and therefore had no right under the Alabama Nonprofit Corporation Act to inspect church records.

What this means for churches

This case demonstrates that there are some exceptions to the unwillingness of the civil courts to resolve internal church disputes. The court concluded that the state Nonprofit Corporation Act gave church members a legal right to inspect church records, but it noted that the Act defined a "member" according to the provisions of a church's articles of incorporation or bylaws. The main issue in this case was whether the church's SOP, as amended by resolution #1, constituted the bylaws of the church, and if so, if it was duly enacted. The court concluded that the civil courts could engage in this very limited review, consistently with the First Amendment guarantee of religious freedom.

Ex parte Board of Trustees, 2007 WL 1519867 (Ala. 2007).

Legal Developments

Inspecting Church Records

Most state nonprofit corporation laws give members a legal right to inspect corporate records for a “proper purpose.”

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A New York court ruled that members of churches incorporated under the state nonprofit corporation law have a legal right to inspect church records so long as they act in good faith and for a proper purpose, and their request pertains to records that are relevant and necessary to the proper purpose.

A church member asked to inspect certain church records. When his request was denied, he asked a court to compel the church to turn over the records pursuant to a provision in the state nonprofit corporation law giving "any person who shall have been a member of record of the corporation for at least six months immediately preceding his demand" to have access to the records of the corporation. A trial court denied the member's request, but this ruling was reversed on appeal.

A state appeals court noted that while the member was no longer a member of the church's board of deacons, his status as a member of the congregation during the six months preceding his request to inspect church records was sufficient to trigger the right of inspection. The court further noted that the nonprofit corporation law permitted members to inspect corporate records only when acting in good faith and for a "proper purpose." The court concluded that both of these requirements were met in this case.

However, the court concluded that the member's description of the records he wanted to inspect was vague, and that "to the extent that the demand is over-broad, the [trial court] may exercise its discretion to narrow its focus so that the church is required to produce only those records that are relevant and necessary for [the member's] purposes.

What this means for churches

This case illustrates three important points. First, most state nonprofit corporation laws give members a legal right to inspect corporate records for a "proper purpose." As a result, members of churches that are incorporated under such a law have a legal right to inspect specified records. Second, a right of inspection only applies to members. The New York law confers a right of inspection only on persons who have been church members for the six months preceding their request for inspection. Third, a request for inspection will be denied, or limited, if it is "over-broad." That is, the church is only required to disclose records that are relevant and necessary to the request for inspection.

Smith v. Calvary Baptist Church, (N.Y.A.D. 2006).

Legal Developments

Church Membership

The Alabama Supreme Court ruled that a dismissed church member no longer had a legal right to inspect church records.

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

Key point 6-10.1. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the First Amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

Key point 6-10.3. The civil courts will not resolve a dispute contesting the discipline of a church member if the member failed to "exhaust" remedies available under the church's own governing documents.

The Alabama Supreme Court ruled that a dismissed church member no longer had a legal right to inspect church records.

A church member (Ken) demanded to inspect certain financial records of his church pursuant to the following provision in the state nonprofit corporation law:

Each corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its members, board of directors and committees having any of the authority of the board of directors; and shall keep at its registered office or principal office in Alabama a record of the names and addresses of its members entitled to vote, directors and officers. All books and records of a corporation may be inspected by any member, director or officer, or his agent or attorney, for any proper purpose at any reasonable time.

When his request to inspect church records was ignored, Ken sued the church. He asked the court to compel the church to honor his request for inspection, and to forbid the church from dismissing him as a member. While this case was pending, the church board unanimously voted to dismiss Ken as a member on the basis of "aggressively contributing to the division within the church and exhibiting a disruptive and divisive spirit contrary to the spirit of Christ and the character of goodness prescribed in the scriptures." The church asked the court to dismiss Ken's lawsuit on the ground that he had lost any legal right to inspect church records following his dismissal as a member of the church. Ken insisted that the church board's decision to dismiss him was invalid since the board had failed to comply with the church bylaws.

The state supreme court concluded that Ken's lawsuit "essentially invited the court to become embroiled in the merits of a fundamental ecclesiastical concern with which the courts must have nothing to do, namely, determining who is and who is not a church member." Since the civil courts could not interfere with the church's decision to dismiss Ken as a member, his dismissal had to be honored, and this meant that he no longer had a legal right to inspect records under the state nonprofit corporation law.

The court rejected Ken's argument that the church board's decision to dismiss him was invalid because the decision was not in compliance with the church bylaws or nonprofit corporation law. It noted that "a church member attacking a church decision may not obtain civil court review of that decision without first exhausting the church's internal appeal procedures. It is undisputed that the church bylaws provide an internal review procedure, which Ken has not yet exhausted. Thus, he could have no right to an order reinstating his membership pending the church's review of his expulsion."

What this means for Churches

This case illustrates three important points. First, most state nonprofit corporation laws give members a legal right to inspect corporate records for a "proper purpose." As a result, members of churches that are incorporated under such a law have a legal right to inspect records. Second, a right of inspection only applies to members, and so a member loses the right to inspect upon being dismissed as a member. Third, the civil courts will not resolve a lawsuit challenging a church's decision to dismiss a member if the dismissed member has failed to exhaust all appeal remedies under the church's bylaws or other governing document.

Lott v. Eastern Shore Christian Center, 908 So.2d 922 (Ala. 2005).

Legal Developments

Church Records

A Texas court ruled that the first amendment did not bar the civil courts from enforcing the rights of church members to inspect the records of an incorporated church.

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A Texas court ruled that the first amendment did not bar the civil courts from enforcing the rights of church members to inspect the records of an incorporated church.

A church member (Tim) made a written request through his attorney to examine and copy some of his church's financial records. Tim made the request pursuant to the Texas Nonprofit Corporation Act, which contains the following provision regarding the authority of members to inspect corporate records:

Each corporation shall keep correct and complete books and records of account and shall keep minutes of the proceedings of its members, board of directors, and committees having any authority of the board of directors and shall keep at its registered office or principal office in this State a record of the names and addresses of its members entitled to vote.

A member of a corporation, on written demand stating the purpose of the demand, has the right to examine and copy, in person or by agent, accountant, or attorney, at any reasonable time, for any proper purpose, the books and records of the corporation relevant to that purpose, at the expense of the member.

Initially, the church agreed Tim could examine and copy the requested records; however, prior to the date he was to inspect the records, the church's pastor sent Tim a letter advising him that the church could not comply with his request.

Tim filed a lawsuit against the church, alleging a violation of the Nonprofit Corporation Act. The church asked the court to dismiss the lawsuit on the basis of the "ecclesiastical abstention doctrine" which bars the courts from intervening in internal church disputes involving governance issues. The trial court granted the church's request and dismissed the lawsuit. Tim promptly appealed.

A state appeals court began its opinion by explaining the ecclesiastical abstention doctrine:

Under the ecclesiastical abstention doctrine, civil courts may not intrude into the church's governance of religious or ecclesiastical matters, such as theological controversy, church discipline, ecclesiastical government, or the conformity of members to standards of morality. In addition, courts should not involve themselves in matters relating to the hiring, firing, discipline, or administration of clergy. The relationships between an organized church and its ministers are considered a church's "lifeblood" and matters involving those relationships are recognized as "of prime ecclesiastical concern." Nevertheless, acknowledging that churches, their congregations, and hierarchy exist and function within the civil community, they can be as amenable to rules governing civil, contract, or property rights as any other societal entity. Therefore, a state may adopt an approach, including neutral principles of law, for resolving church disputes that do not involve consideration of doctrinal matters. Under such an approach, a court may interpret church documents in purely secular terms without relying on religious precepts in resolving the conflict. If an issue cannot be determined without resolving a religious controversy, a court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body. Often, however, the difficulty arises in determining whether a particular dispute is "ecclesiastical" or simply a civil law controversy in which church officials happen to be involved. To resolve the question, courts must look to the "substance and effect of a plaintiff's complaint to determine its ecclesiastical implication, not its emblemata."

In the trial court, Tim sought an order declaring and enforcing the parties' rights under the Nonprofit Corporation Act. Tim argued that as a nonprofit corporation incorporated under the Act, the church was required to maintain books and to make them available to its members. The church insisted that the disclosure of its financial records was a matter of internal ecclesiastical governance, reasoning that because the pastor decides when disclosure is appropriate, it is an ecclesiastical matter.

The court concluded that Tim's request to inspect church records, pursuant to the Nonprofit Corporation Act under which the church was incorporated, "did not involve any religious doctrine or precept. Resolution of the dispute does not require that we intervene in the hiring, firing, discipline, or administration of the church's clergy, nor that we address the conformity of members to the church's standards of morality, or any other matters traditionally held to involve religious doctrine. Further, we are not being called upon to interpret any church constitution, bylaws, or other governing documents. In fact, there are no documents in the record indicating how or by whom the church is governed. Moreover, we are not asked to decide matters relating to the hierarchical or congregational nature of the church."

The court noted that courts in other states had reached a similar conclusion that the first amendment does not bar the civil courts from enforcing the rights of church members to inspect church records if such a right is granted by the state nonprofit corporation law under which the church is incorporated. It specifically referenced two cases. In the first case, the Louisiana Supreme Court ruled that "the underlying first amendment principles, which protect against entanglement of civil courts in questions of religious doctrine, polity, or practice, are not offended by the judicial enforcement of a statute requiring a church, as a non-profit corporation, to keep at its registered office, corporate records for examination by its voting members." Bourgeoise v. Landrum, 396 So.2d 1275 (La. 1981). In the second case, a New York court concluded that a church's first amendment rights were not violated by inspection of its records because the questions involved were not concerned with internal ecclesiastical or religious issues, but only secular ones. Watson v. Christie, 732 N.Y.S.2d 405 (2001).

The Texas court agreed with the conclusions reached by the Louisiana and New York courts in similar cases. It concluded, "By incorporating under the Act, the church has become amenable to the provisions of that statute. The trial court was merely called upon to uphold the plain language of the Act and ensure Tim was allowed access to the church's books and records in accordance with the statute. This judicial function does not jeopardize the ability of religious organizations to establish religious doctrine or develop their internal rules and regulations, nor does it implicate secular interests in purely ecclesiastical matters; therefore, first amendment principles are not offended. We find Tim's request to review the church's records merely requires the trial court to enforce a neutral principle of law."

The court conceded that "a dispute may arise regarding the church's finances should Tim be allowed access to its records," however, "the issue now before us cannot be resolved based upon what may happen. The trial court dismissed Tim's claims for lack of jurisdiction relying upon the ecclesiastical abstention doctrine. Because under these circumstances the court is not required to involve itself with any religious doctrine or principles, we conclude the trial court erred in dismissing Tim's lawsuit on the basis that it lacked jurisdiction."

What this means for churches

This case illustrates a very important point. Church leaders often wrestle with the question of whether or not to honor requests by members to inspect various kinds of corporate records. In most states, members of churches that are incorporated under the state nonprofit corporation law have a legal right to inspect specified corporate records for a "proper purpose." This case illustrates that this requirement is not a mere technicality that is disregarded by the courts. Members demanding to inspect church records have the burden of establishing a proper purpose for their request. Obviously, deciding whether or not a member has met this burden can be a difficult question in some cases. A local attorney should be consulted if there is any doubt.

Lacy v. Bassett, 132 S.W.3d 119 (Tex. App. 14th Dist. 2004).

Legal Developments

Church Records

A New York court ruled that a member had a legal right to inspect church records on the basis of a provision in the not-for-profit corporation law.

Richard R. Hammar, Attorney, CPA
Bio



Key point 6-03.1 . Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A New York court ruled that a member had a legal right to inspect church records on the basis of a provision in the not-for-profit corporation law.

A church member requested permission to inspect certain books and records of his church for the years 1997 to present. He relied on the following section of the New York Not-For-Profit Corporation Law (under which the church was incorporated):

Upon the written request of any person who shall have been a member of record for at least six months immediately preceding his request … the corporation shall give or mail to such member an annual balance sheet and profit and loss statement or a financial statement performing a similar function for the preceding fiscal year, and, if any interim balance sheet or profit and loss or similar financial statement has been distributed to its members or otherwise made available to the public, the most recent such interim balance sheet or profit and loss or similar financial statement. The corporation shall be allowed a reasonable time to prepare such annual balance sheet and profit and loss or similar financial statement.

The church denied the member's request to inspect church records on the ground that his "fellowship" had been "suspended" by his failure to tithe and to take "the Lord's Supper." The court rejected this excuse, noting that the church's bylaws "do not define either fellowship or the effect of suspension," and that the bylaws "clearly set out a different criteria for expulsion of one's membership, which affords a member an opportunity to resign and a hearing, neither of which has occurred. In fact, it is uncontested that no process of expulsion has occurred." The court concluded that the member was "simply trying to enforce his secular rights as a member, using the church's own criteria of membership and the pastor's own admission that plaintiff has not been expelled as a member."

The court rejected the church's claim that its first amendment rights would be violated by an inspection of its records, since "the questions involved here are not concerned with internal ecclesiastical or religious issues, but purely secular ones."

The court concluded that the member "has demonstrated a good faith basis and proper purpose in seeking the inspection, while [the church] has failed to carry its burden of demonstrating bad faith."

What this means for churches

This case provides church leaders with some useful insights into the meaning of state nonprofit corporation laws that give members a limited right to inspect corporate records. Consider the following:

  • The right of inspection is not absolute. It only exists if a church is incorporated under a state nonprofit corporation law that gives members such a right.
  • The right of inspection only extends to members.
  • The right of inspection only extends to those records specified in the statute creating the right.
  • Most such laws provide that the member may inspect documents "for a proper purpose" at a "reasonable time."
  • The court in this case concluded that a member had the legal authority to inspect church records even though the pastor claimed that the member's "fellowship" had been suspended by his failure to tithe or take the Lord's Supper.

The court examined the church's bylaws and found no provision addressing suspension of membership on the grounds cited by the pastor.

Watson v. Christie, 732 N.Y.S.2d 405 (2001).

Legal Developments

Church Records

A New York court ruled that a church member had the legal authority to inspect church records despite the pastor’s refusal to allow him to do so.

Richard R. Hammar, Attorney, CPA
Bio



Key point 6-03.1 . Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A New York court ruled that a church member had the legal authority to inspect church records despite the pastor’s refusal to allow him to do so.

Most church leaders are not sure how to respond when a member asks to inspect church records. Do members have a legal right to have access to church records? If so, under what conditions? Are there exceptions? These are very relevant and important questions for which church leaders should have answers. A recent New York case addresses these issues and provides helpful guidance.

A church member asked for permission to inspect various church records. His request was denied on the ground that his membership had been suspended because of his failure to pay tithes and "take the Lord's Supper." The member sued, claiming that state nonprofit corporation law gave him a legal right to have access to the church's records. The New York nonprofit corporation law contains the following language regarding the inspection of records:

Except as otherwise provided herein, every corporation shall keep, at the office of the corporation, correct and complete books and records of account and minutes of the proceedings of its members, board and executive committee, if any, and shall keep at such office or at the office of its transfer agent or registrar in this state, a list or record containing the names and addresses of all members, the class or classes of membership or capital certificates and the number of capital certificates held by each and the dates when they respectively became the holders of record thereof. A corporation may keep its books and records of account in an office of the corporation without the state, as specified in its certificate of incorporation. Any of the foregoing books, minutes and records may be in written form or in any other form capable of being converted into written form within a reasonable time. Any person who shall have been a member of record of a corporation for at least six months immediately preceding his demand … upon at least five days written demand shall have the right to examine in person or by agent or attorney, during usual business hours, its minutes of the proceedings of its members and list or record of members and to make extracts therefrom.

A trial court ruled that the member had a legal right, on the basis of the nonprofit corporation law, to inspect church records from 1997 to the present. A state appeals court agreed. It acknowledged that only "members" had a legal right to inspect records, but it concluded that the member had not lost his status as a member of the church. It observed,

Although his "fellowship" may have been "suspended" by his failure to tithe and to take "the Lord's Supper," the bylaws of the church do not define either "fellowship" or the effect of suspension. Furthermore, the bylaws clearly set out a different criteria for expulsion of one's membership, which affords a member an opportunity to resign and a hearing, neither of which has occurred. In fact, it is uncontested that no process of expulsion has occurred. This is not a case where a member is seeking to force the church to perform some act against its will or seeking to define membership in a way opposed by the church. The member is simply trying to enforce his secular rights as a member, using the church's own criteria of membership and the pastor's own admission that he has not been expelled as a member. Nor are the church's first amendment rights violated by the inspection of the records, as the questions involved here are not concerned with internal ecclesiastical or religious issues, but purely secular ones.

The court also pointed out that the church board had voted to allow the member to inspect the church's records, and therefore it was doubtful that the pastor had the legal authority to contest this issue in court.

The court noted that state nonprofit corporation law only permits inspection for the prior fiscal year. However, it pointed out that the pastor had admitted that it was the church's policy to allow broader inspection to members. As a result, "the court properly recognized this policy by allowing inspection of the years 1997 to present."

What this means for churches:

This case provides church leaders with some useful insights into the meaning of state nonprofit corporation laws that give members a limited right to inspect corporate records. Consider the following:

  1. The right of inspection is not absolute. It only exists if a church is incorporated under a state nonprofit corporation law that gives members such a right.
  2. The right of inspection only extends to members.
  3. The right of inspection only extends to those records specified in the statute creating the right.
  4. Most such laws provide that the member may inspect documents "for a proper purpose" at a "reasonable time."
  5. Members may lose the right to inspect church records if they are dismissed or suspended from membership pursuant to procedures specified in the church's bylaws or other governing document. However, as the court concluded in this case, members cannot lose their right to inspect church records by being "suspended" in a manner not authorized by the bylaws.
  6. As this case illustrates, state nonprofit corporation law may limit the right of inspection to records created during the current or previous year. Be alert to any such limitation under your state's law.
  7. Any decision to withhold documents from a member should be made with the advice of an attorney.

    8. Watson v. The Manhattan Holy Bible Tabernacle, 732 N.Y.S.2d 405 (2001).

Legal Developments

Church Records

A Georgia court ruled that a church treasurer had a legal right to demand that a church’s former pastor and former treasurer turn over the church’s financial records.

Richard R. Hammar, Attorney, CPA
Bio


Key point. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A Georgia court ruled that a church treasurer had a legal right to demand that a church's former pastor and former treasurer turn over the church's financial records.

A church removed its pastor and appointed a new church treasurer ("Andy"). When Andy tried to change the signature cards on the church's bank accounts, he discovered that the former pastor's niece and another church member had already attempted to withdraw the money and had succeeded in closing one bank account containing $5,000. He also noted that the church computers with current financial records had been removed and recent financial files were also missing. In addition, all of the furniture, books, tapes, and other items from the bookstore had been removed. Also, there was a balloon note for $400,000 but no record of the money being deposited in any church bank account. Andy later testified that when he took over as treasurer there was no money in any of the church's accounts, the insurance had lapsed, and they had to wait until they took up the weekly offering to pay the bills.

Andy filed a lawsuit in which he asked a court to compel the former pastor and former treasurer to turn over the church's financial records. He relied on a provision in the church bylaws specifying that any member could inspect the books and records of the church for any proper purpose and at any reasonable time upon written demand and under oath stating the purpose. He insisted that as church treasurer, trustee, and member of the executive committee he was responsible for preparing a budget, monitoring income and expenses, and keeping financial records for the church. Nevertheless, despite repeated requests, the former pastor and former treasurer refused to turn over the necessary church financial records.

The former treasurer testified that he had not turned over any tax returns, budgets, audited financial statements, or checking, savings, or investment account records. Also, he had not furnished records of deposits, contributions, or tithes. He said that tithes from the congregation were deposited into the pastor's "executive account" and his salary as well as other staff members' salaries were paid from that account.

A trial court ordered the former pastor and former treasurer to provide a complete financial accounting for the past three years and required them to return any church property in their possession. It concluded that there was "no credible evidence that any religious doctrine prohibited the church from providing the requested records." The court also ruled that the refusal to turn over the records was frivolous and vexatious and it ordered the former pastor and former treasurer to pay attorney fees and costs of $24,657.

The former pastor and former treasurer appealed, claiming that the dispute was ecclesiastical and therefore the first amendment guaranty of religious freedom prevented the civil courts from resolving it. A state appeals court disagreed. It noted that state nonprofit corporation law (under which the church was incorporated) "requires that nonprofit corporations maintain appropriate accounting records in written form or in some form capable of conversion into written form within a reasonable time." Further, state nonprofit corporation law gives members the legal right to inspect and copy these records if the member's demand is made in good faith and for a proper purpose.

The court acknowledged that the statute specifies that "if religious doctrine governing the affairs of a corporation is inconsistent with the provisions of this chapter on the same subject, the religious doctrine shall control to the extent required by the Constitution of the United States or the Constitution of this state or both." However, the court concluded that "there was no religious doctrine of the church that was inconsistent with these statutes. Moreover, the church bylaws specifically give members the right to review financial documents."

What this means for churches

This case is important for two reasons. First, it illustrates that church members are given a broad legal right to inspect church records under the nonprofit corporation laws of many states. This of course assumes that a church is incorporated under such a statute. Further, as was true in this case, church bylaws may provide additional inspection rights. Therefore, even if a church is not incorporated, this does not necessarily mean that members have no right to inspect church records, since such a right may be set forth in the church's bylaws or other governing document. Second, the church's former pastor and former treasurer had to pay nearly $25,000 in attorneys' fees incurred by the new treasurer in asserting his right to inspect records.

Denial of a member's legitimate request to inspect church records, where such a right is clearly given by state law or a church's governing documents, may expose church leaders to similar damages.

Greer v. Davis, 534 S.E.2d 853 (Ga. App. 2000).

Legal Developments

Church Records

A Colorado court ruled that a church member’s legal authority to inspect church records pursuant to state nonprofit corporation law ended when his membership was revoked.

Richard R. Hammar, Attorney, CPA
Bio


Key point. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.


Key point. According to the majority view, the civil courts will not resolve disputes challenging a church's discipline of a member since the first amendment guaranty of religious freedom prevents them from deciding who are members in good standing of a church.

A Colorado court ruled that a church member's legal authority to inspect church records pursuant to state nonprofit corporation law ended when his membership was revoked by the church board.

A church conducted a series of fundraising campaigns in the 1970s and 1980s that resulted in massive financial failures, multiple lawsuits, and enormous debt. A 1986 capital fundraising campaign that was launched to pay off the church's unpaid creditors resulted in a class action lawsuit. In 1991, this lawsuit was settled by agreement of a majority of the class members in exchange for the church's payment of $700,000. Despite this settlement, many of the church's original debts remained unpaid. In 1999 the church membership voted not to attempt to pay any remaining unpaid creditors.

Joel had been a member of the church since 1987. In 1998 Joel sought to inspect and copy portions of the church's financial records pursuant to a state nonprofit corporation law giving members the right to inspect corporate records at a reasonable time for a proper purpose. Over the course of several months Joel inspected and copied approximately 2,400 pages of records. He provided the church with various reasons for his many requests to inspect records, including: (1) to determine the financial abilities of the church to pay creditors; (2) to determine whether the church could be operated more efficiently so that additional funds could be made available to pay creditors; and (3) to enable him to communicate with other church members about the church's ability to pay its debts.

In 1999 Joel presented the church with yet another request for inspection of documents, but this time the church refused his request. Joel immediately sued the church, seeking a court order compelling the church to turn over the requested records. Upon learning of this lawsuit, the church board unanimously voted to revoke Joel's membership in the church. During the trial of Joel's lawsuit the church argued that its decision to revoke Joel's membership deprived him of any legal authority to inspect church records, since the right of inspection (under the nonprofit corporation law) is only given to members.

The trial court disagreed, noting that Joel had been a member at the time he made his request to inspect additional records. However, it concluded that Joel lacked a "proper purpose" to inspect additional records, as required by the nonprofit corporation law. In reaching this conclusion, the court referred to Joel's "unreasonable requests" and his dissatisfaction with the church board's decision not to launch another fundraising campaign to pay creditors. Joel appealed.

On appeal, the church claimed that a nonmember, such as Joel, could not have the required "proper purpose" to inspect corporate records. In the church's view, Joel's membership in the church was a prerequisite to a request to inspect corporate records, and so the church's decision to revoke Joel's membership deprived him of any legal authority to inspect records. Therefore, even if Joel had a "proper purpose" in seeking to inspect additional records, he was still not legally entitled to inspect additional church records. The court agreed. It observed,

To obtain records … such as those at issue here, the member's request [must be based on] good faith and a proper purpose. "Proper purpose" means a "purpose reasonably related to the demanding member's interest as a member." Thus, to obtain records, a person must be a member with a present ability to promote the welfare of the association …. [When Joel lost his membership] he could not, by definition, have any "interest as a member" sufficient to afford him a proper purpose to inspect records. Specifically, as a nonmember, [he] no longer had a member's stake in what had been done with church resources, nor any member's interest in determining church economies, nor any member's voice with which to persuade voting church members to adopt his policies …. Thus, [his] good intentions aside, he is now an outsider to the church, and any attempts to use the information contained in the church's records for his stated purposes would be futile. Accordingly, the provisions of the [nonprofit corporation statute] upon which his claim is based give him no right to judicial relief.

Joel insisted that if the expulsion of members from a nonprofit corporation cuts off their ability to inspect corporate records, then the right of inspection is meaningless. The court disagreed. The court conceded that "ordinarily, judicial recourse is available to a member of a nonprofit corporation seeking records who is subsequently expelled from membership." However, it noted that "when the nonprofit corporation is a church … the situation is different.. It concluded, "Here, the board of elders elected by the congregation is the highest church judicature and … a civil court simply has no authority to reverse its decision, no matter how arbitrary or unfair, to expel [Joel] or any other member."

The court concluded, "The church's decision to expel [Joel] is nonreviewable, and reinstatement of [his] membership would be exclusively the church's decision. Without membership in the church [he] can no longer have a proper purpose reasonably related to his interest as a member. Thus, he no longer has standing to inspect the church's financial records."

What this means for churches

This case illustrates three important points. First, members of churches incorporated under state nonprofit corporation law often are given a limited right to inspect specified church records. Second, a person whose membership in the church has been revoked may no longer have any legal right to inspect church records, even if the revocation of membership occurred after the member's initial request to inspect records. Very few courts have addressed this second point, and so it should not be assumed that courts in other states will agree with this conclusion. However, at a minimum, this case will serve as legal support for such a position. Third, the church board revoked Joel's membership in part because of his decision to sue the church.

Many churches have enacted bylaws calling for the discipline or dismissal of members who sue the church. This case suggests that such provisions will be enforced by the civil courts.

Levitt v. Calvary Temple, 2001 WL 423040 (Colo. App. 2001).

Legal Developments

Church Records

A New York court ruled that members of a nonprofit corporation had a “proper purpose” in asking to see various records of the corporation.

Richard R. Hammar, Attorney, CPA
Bio


Key point 6-03.1. Church members generally have no right to inspect church records unless such a right is conferred by state nonprofit corporation law, a church's charter or bylaws, state securities law (if the church has issued securities), or a subpoena. Church records enjoy no privilege against disclosure, with the exception of documents that are protected by the clergy-penitent privilege under state law.

A New York court ruled that members of a nonprofit corporation had a "proper purpose" in asking to see various records of the corporation, and therefore they had a legal right under the state nonprofit corporation law to see those records.

A nonprofit corporation amended its articles of incorporation and bylaws to prevent "inactive members"' from voting on certain matters. Several inactive members informally asked to see the new corporate bylaws along with member lists and voting lists. When these requests were denied, the inactive members made a request to inspect the "books, minutes, and records" of the charity pursuant to the state Not-For-Profit Corporation Law. While the charity provided some records, it refused to provide several others on the ground that the members did not have a "proper purpose" for seeking them. The members appealed to a court for an order compelling inspection of the records. The court began its opinion by noting that

there is both a common law and statutory right by … members in a Not-For-Profit Corporation, to inspect the books and records of a corporation. However, inspection may be denied to a member who does not have a "proper purpose." To prove that their purpose is proper the statute requires members to supply affidavits to the corporation attesting that the information obtained through the inspection "will not be used for a purpose which is in the interest of a business or object other than the business of the corporation." Even then, the court has an obligation to look beyond the face of those affidavits to determine if there is bad faith on the part of the [members]. If the court finds that the application is not made in good faith and for proper purpose then the court may deny the petition.

The nonprofit organization insisted that the members' purpose was not "proper" because it was purely personal in nature. The members claimed that the "bad faith" and acts of alleged misconduct on the part of the organization's officers and directors justified their demand for inspection. The court noted that the fact that the members' interest "has a personal aspect to it does not preclude there being a legitimate corporate interest involved." It pointed out that members of nonprofit corporations "often have something personal to gain in their effort to call corporate policies into question," but concluded that this did not make their purpose any less legitimate.

The court provided the following additional clarification: "A proper purpose is one that is germane to the members' status in the corporation. This includes members' right to communicate with fellow members regarding amended bylaws, and the right to investigate management conduct."

With regard to the number of records that the members could inspect, the court noted that "the right to inspection would be wholly illusory if the corporation was permitted to decide which of its records members were allowed to see, and unduly burdensome if members were permitted to engage in a fishing expedition." The court then made the following additional conclusions:

(1) The charity refused to turn over some committee minutes on the ground that it was "unable to locate documents responsive" to this request. The court concluded that this answer was not a denial that the minutes ever existed, and "is not a satisfactory answer in a situation where the members are entitled to minutes that have been prepared by a committee, and therefore have become part of the corporate records. Given the import of the inspection statute, and the fact that the [charity] is accountable for its corporate records, at the very least it should disclose to the [members] whether or not such minutes ever existed. If in fact they exist then the committee minutes should be disclosed. If they once existed but cannot be found, that fact should be disclosed."

(2) The members claimed that the "minutes" provided to them of board meetings were "truncated" and "inaccurate." The court ordered the charity to provide the members with correct and complete minutes for the relevant meetings. However, the court cautioned that corporations are not required to "add" details that were not in the original minutes. "As long as the minutes bear the signature of the secretary of the meeting as evidence of their accuracy and completeness, I believe this satisfies the obligation" under the statute to turn over records.

What this means for churches

The right of church members to inspect church records is an important question. This case provides the following clarifications:

1. Most state nonprofit corporation laws give members a legal right to inspect specified corporate books and records at a reasonable time and for a "proper purpose." This court also recognized that members of nonprofit corporations have a "common law right" to inspect corporate records, meaning that the right exists whether or not granted by the applicable nonprofit corporation law. This is perhaps the first time that a court has reached this conclusion.

2. The court provided a broad interpretation of a "proper purpose." The definition of this term is critical, since it will determine whether or not members have a legal right to inspect specified documents. The court concluded that a request to inspect corporate documents that is based on members' desire to investigate and correct alleged misconduct by officers and directors is a proper purpose. It also concluded that a purpose may be proper even though it serves some personal interest of the member or members requesting the documents. The court provided a useful definition of a proper purpose as one that is "germane to the members' status in the corporation" including the right to "communicate with fellow members regarding amended bylaws and the right to investigate management conduct."

3. The court was unwilling to let the charity respond to document requests by providing summaries of the requested documents. On the other hand, it noted that a charity need not "expand" or provide additional details to committee and board minutes that were not in the original minutes. "As long as the minutes bear the signature of the secretary of the meeting as evidence of their accuracy and completeness, this satisfies the obligation" under the statute to turn over records. Many church board minutes are very abbreviated. This case suggests that a request by members to see those minutes will not require the church to provide detail that was not in the original minutes.

Wells v. League of American Theatres, 706 N.Y.S.2d 599 (Sup. Ct. 2000).

Legal Developments

Legal Development in Texas Regarding Church Records

The Texas Supreme Court ruled that a state nonprofit corporation law that granted a limited right to inspect corporate records did not mandate the disclosure of donor records.

Richard R. Hammar, Attorney, CPA
Bio

Key point. Many nonprofit corporation laws give members the legal right to inspect certain corporate records. These laws generally do not give members the right to inspect donor records.

The Texas Supreme Court ruled that a state nonprofit corporation law that granted a limited right to inspect corporate records did not mandate the disclosure of donor records. While the case did not involve a religious charity, the court's conclusions are of direct relevance to any church incorporated under a comparable law.

The Texas Nonprofit Corporation Act specifies that nonprofit corporation "shall maintain current true and accurate financial records with full and correct entries made with respect to all financial transactions of the corporation." It further specifies that "[a]ll records, books, and annual reports of the financial activity of the corporation shall be kept at the registered office or principal office of the corporation … and shall be available to the public for inspection and copying there during normal business hours."

Based on these provisions, a group of persons demanded that a charity turn over documents revealing the identities of all donors and the amounts of donors' annual contributions. The charity resisted this request, claiming that the inspection right provided under the nonprofit corporation law did not refer to inspection or disclosure of donor lists, and that even if it did, such a provision would violate the first amendment freedom of association.

The persons demanding the donor lists insisted that once the charity incorporated under the nonprofit corporation law, it "waived" any objection (constitutional or otherwise) to disclosure of financial records, including donor lists.

The state supreme court ruled that the right of inspection did not extend to donor lists. It noted that "the statute does not expressly require that contributors' identities be made available to the public." And, it found that the intent of the legislature in enacting the inspection right "was not to force nonprofit corporations to identify the exact sources of their income; rather, it was to expose the nature of the expenditures of that money once received from the public and to make nonprofit organizations accountable to their contributors for those expenditures."

As a result, the statute "can be upheld as constitutional when interpreted as not requiring disclosure of contributors' names." On the other hand, if the statute were construed to grant access to donor lists, then "it would violate the first amendment [right of association] in some circumstances, thus rendering it unconstitutional."

The court concluded that the phrase "financial records" does not include "the names of contributors or members."


Application. Many church leaders have wondered if members have a legal right to access donor information. This case suggests that any church incorporated under the Texas nonprofit corporation law (or a comparable statute in another state) is not required to turn over any records identifying either the names of donors, or the amounts of donors' contributions.

The fact that this decision represents a ruling by the Texas Supreme Court will give it greater weight in other states. In re Bacala, 982 S.W.2d 371 (Tex. 1998).

See also Church Records

Legal Developments

Members’ Right to Inspect Church Records

When can members inspect church records?

Richard R. Hammar, Attorney, CPA
Bio


Key point. Most state nonprofit corporation laws give members of a nonprofit corporation a legal right to inspect specified corporate records. Churches incorporated under such laws are subject to these same provisions, meaning that members may have a right to inspect some church records. Such a right of inspection does not violate the first amendment.

A Louisiana court ruled that an incorporated church had to allow members to inspect church records.

Four members asked for permission to inspect the following records of their church: (1) bank statements from 1994; (2) the check register and cancelled checks for all the church's bank accounts from 1994; (3) the cash receipts journal from 1994; and (4) monthly financial reports from 1994. The pastor of the church denied the members' request. The members then sought a court order compelling the church to permit them to inspect the records. The pastor insisted that such an order would interfere with "internal church governance" in violation of the first amendment. A state appeals court ruled that allowing the members to inspect records, pursuant to state nonprofit corporation law, would not violate the first amendment.

The Louisiana nonprofit corporation law gives every voting member of a nonprofit corporation the right to "examine, in person … at any reasonable time, the records of the corporation." The court noted that the persons seeking to inspect church records were members, and that the church was incorporated under the nonprofit corporation law. As a result, the requirements for a right of inspection were met. Further, this right did not violate the first amendment guaranty of religious freedom.

The court quoted from an earlier Louisiana Supreme Court ruling addressing the same issue:

A voting member of a nonprofit corporation has a right to examine the records of the corporation without stating reasons for his inspection. Since the judicial enforcement of this right does not entangle civil courts in questions of religious doctrine, polity, or practice, the first amendment does not bar a suit to implement the statutory right.

First amendment values are plainly not jeopardized by a civil court's enforcement of a voting member's right to examine these records. No dispute arising in the course of this litigation requires the court to resolve an underlying controversy over religious doctrine.

The court concluded: "Likewise, in the case before us, there is no entanglement in questions of church doctrine. The trial court … was not deciding or even delving into the underlying religious dispute, if any. The court was simply enforcing the members' right to examine financial records, whatever the members' reasons or the merit of their complaint."

What this means for churches

Many churches are incorporated under nonprofit corporation laws that give members a limited right to inspect records. The inspection right is limited, because

  • it only applies to members;
  • it only applies to members of churches that are incorporated under the nonprofit corporation law;
  • members generally have a right to inspect documents only for a "proper purpose" at a "reasonable time"; and
  • nonprofit corporation laws often specify those documents that may be inspected.

Church leaders who are presented with a request by a member to inspect church records should refer to the nonprofit corporation law under which the church is incorporated. If the church is not incorporated, then members generally do not have a legal right to inspect records unless such a right is granted by the church charter or bylaws.

Jefferson v. Franklin, 692 So.2d 602 (La. App. 1997).

Legal Developments

Members’ Inspection of Church Records

Who has a right to inspect records?

Richard R. Hammar, Attorney, CPA
Bio


Key point. Nonprofit corporation laws generally give members a right to inspect corporate records at a reasonable time for a proper purpose. Members of churches incorporated under such a statute therefore have a limited inspection right. However, this right does not apply unless the member can demonstrate a proper purpose.

An Ohio court ruled that a member of a nonprofit corporation did not have a legal right to inspect corporate records.

A nonprofit organization was incorporated under an Ohio statute that gives members a legal right to inspect "all corporate records … for any reasonable and proper purpose and at any reasonable time." A member of a nonprofit corporation asked to inspect (1) minutes of the board; (2) financial records; and (3) membership records. His stated purpose was to determine whether or not he had been secretly "excommunicated" from the organization. The member sued the corporation when it refused to respond to his request. A court ruled that the member was not entitled to inspect any of the records in question. It noted that Ohio nonprofit corporation law "requires that two elements be met before the books and records of a nonprofit corporation can be examined: (1) the person requesting the records must be a member of the organization; and (2) the member must have a reasonable and proper purpose for wanting to see the corporate books."

The court concluded that the member had no legal right to inspect the corporation's records. On the one hand, if he in fact were not a member, then he would fail the first requirement (only members have a legal right to inspect corporate records). On the other hand, if he in fact was still a member, then he failed the second requirement since there would be "reasonable and proper purpose" in inspecting corporate records to ascertain this fact.

What this means for churches

Many churches are incorporated under state nonprofit laws that provide members with a limited right to inspect corporate records. These laws generally require that the person requesting the records be a member, and that he or she be motivated by a proper purpose. This case illustrates the difficulty that may be encountered by members in establishing a proper purpose for a request to inspect records.

Nozik v. Mentor Lagoons Yacht Club, 678 N.E.2d 948 (Ohio App. 1996).

Legal Developments

Can Church Records Be Subpoenaed?

A Pennsylvania court tackles the issue.

Richard R. Hammar, Attorney, CPA
Bio

Church Law and Tax 1997-07-01

Can Church Records Be Subpoenaed?

Richard R. Hammar, J.D., LL.M., CPA

A Pennsylvania court tackles the issue-Commonwealth v. Stewart,
690 A.2d 195 (Pa. 1997)

[ The Clergy-Penitent Privilege, Inspection of Church Records]

• Key point. The Pennsylvania Supreme Court ruled that the clergy—penitent privilege did not excuse a Roman Catholic diocese from turning over internal documents pertaining to a priest in response to a subpoena. The court’s ruling provides useful guidance to churches in deciding how to respond to a subpoena requesting the disclosure of church records. This feature article reviews the facts of the case, summarizes the court’s ruling, and evaluates the practical significance of the case to other churches.

What if your church were served with a subpoena demanding that various financial records, membership records, and a pastors counseling notes be turned over to an attorney? How would you react? Many church leaders consider such demands to be inappropriate, and resist turning over internal church records. Is this a legally appropriate response? Does the law exempt churches from having to turn over internal church records in response to a subpoena? These are important questions for which there has been little direction from the courts. A recent decision by the Pennsylvania Supreme Court addresses these questions directly, and provides churches with important guidance.

Facts

The facts of the case can be summarized quickly. An individual (the “defendant”) was charged with the murder of a Roman Catholic priest. The priest was found shot to death in the defendants home. The defendant admitted that he shot the priest, but he insisted that he did so in self—defense. In attempting to prove that he acted in self—defense, the defendant subpoenaed documents from the local Catholic Diocese. Specifically, the defendant requested the priests personnel records and the Diocese’s records concerning the priest’s alleged alcohol and drug abuse and sexual misconduct. The defendant insisted that these documents could help prove that he acted in self—defense because of the priests past violent conduct.

The Diocese turned over some documents but refused to turn over any records kept in its “secret archives.” According to the Diocese, its secret archives contain copies of all written communications between the bishop and his priests and notes of any oral communications between the bishop and priests, that are considered to be confidential. The Diocese asked the court to excuse it from turning over the following categories of documents:

  1. All reports, letters and other documents pertaining to any allegations of misconduct or other disciplinary action regarding the priest.
  2. Copies of any reports pertaining to any sexual misconduct by the priest.
  3. Copies of all personal records, correspondence, diaries or similar documents maintained by the priest, whether such documents were maintained at his former parish or other locations.
  4. Copies of any reports pertaining to any alcohol or other substance abuse or treatment by the priest from 1986 to 1989.

    5. The Diocese claimed that these records had to be exempted from the defendants subpoena on the basis of (1) the Pennsylvania clergy—penitent privilege, and (2) the first amendment guaranty of religious freedom.

    The trial court denied the Diocese’s request for a blanket exemption of these documents from the defendants subpoena. However, the court did concede that some of the documents might be protected from disclosure by the clergy—penitent privilege. Since it was not clear whether any of the documents were protected by the privilege, the trial judge ordered the documents turned over to him for a confidential review to determine if the privilege applied.

    The Diocese appealed the trial court’s ruling to the state supreme court.

    The court’s ruling

    The clergy—penitent privilege is narrowly construed

    The court first addressed the Dioceses claim that the documents in question were protected from disclosure by the clergy—penitent privilege. It began its opinion by quoting the Pennsylvania privilege:

    No clergyman, priest, rabbi or minister of the gospel of any regularly established church or religious organization, except clergymen or ministers, who are self—ordained or who are members of religious organizations in which members other than the leader thereof are deemed clergymen or ministers, who while in the course of his duties has acquired information from any person secretly and in confidence shall be compelled, or allowed without consent of such person, to disclose that information in any legal proceeding, trial or investigation before any government unit.

    The court noted that privileges are narrowly interpreted and are “not favored” since “exceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.” Therefore, privileges should be recognized “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.”

    Prior Pennsylvania court interpretations of the privilege

    The court noted that “Pennsylvania courts have interpreted our clergy—communicant privilege as applying only to confidential communications between a communicant and a member of the clergy in his or her role as confessor or spiritual counselor.” It cited the following examples:

    Case 1. A plaintiff filed a lawsuit against a priest and diocese on account of damages suffered as a result of the priests acts of child molestation. The plaintiff issued a subpoena to the diocese seeking disclosure of various church documents concerning alleged sexual misconduct with minor male children by priests assigned to the diocese; the complete personnel files of specified priests; and documents kept by the diocese in its secret archives. The diocese refused to produce any documents contained in its secret archives. The trial court ordered discovery of documents relating to incidents of actual or alleged sexual misconduct by priests with minor, male children and information concerning the assignment and transfer of priests. A state appeals court agreed, rejecting the dioceses claim that the documents were protected from disclosure on the basis of the clergy—penitent privilege. The court explained that the clergy—penitent privilege is limited to statements made in confidence to a member of the clergy for spiritual considerations or penitential purposes. It noted that the mere fact that a communication is made to a member of the clergy, or that documentation is transmitted to a member of the clergy, is not sufficient alone to invoke the privilege. The court concluded that the Diocese had failed to show that the communicant had disclosed the requested information in confidence to a member of the clergy in the context of a confession or spiritual matter. Hutchison v. Luddy, 606 A.2d 905 (Pa. Super.1992).

    Case 2. A priest was assigned to a defendant as a court—appointed counselor following the defendant’s arrest for indecent exposure. During this counseling, the defendant informed the priest that he wanted to confess to a murder. The priest informed the police of the confession, and the defendant was later convicted of first degree murder on the basis of the priests testimony. The defendant appealed his conviction, claiming that his statements to the priest were protected from disclosure on the basis of the clergy—penitent privilege. A state appeals court disagreed, finding no evidence indicating that the defendant had communicated with the priest in his capacity as a minister rather than as a court—appointed counselor. The court concluded that since the defendant’s statements to the priest were not motivated by religious considerations, the trial court properly admitted the priest’s testimony. Commonwealth v. Patterson, 572 A.2d 1258 (Pa. Super. 1990).

    Case 3. A defendant was convicted of morals crimes involving young boys. He was released from prison on parole, upon the condition that he would reside in a specified group home and refrain from any association with young boys. The director of the home was a minister. While staying in the home, the defendant admitted to the director that he had been associating with young boys. The director informed the defendants parole officer, and a parole violation hearing was conducted at which the director testified regarding the defendants admissions. On the basis of this testimony the defendant was sent back to prison. He appealed this result, claiming that his statements to the director were protected from disclosure by the clergy—penitent privilege. A state appeals court disagreed. It concluded that the privilege does not prohibit all testimony by members of the clergy. Instead, the privilege is limited to information told in confidence to clergy in their roles as confessors or counselors. The court concluded that there was no evidence of a “confessor/penitent relationship” between the defendant and the director or that the defendant offered his admissions in confidence. The court determined that the director’s role toward the defendant was that of volunteer or supervisor to help in his rehabilitation while on parole. Without a showing that the director’s role was one of confessor or confidant, the court held that the challenged admissions did not fall within the protection of the clergy—penitent privilege. Fahlfeder v. Commonwealth, 470 A.2d 1130 (Pa. Common. 1984).

    The interpretation of the clergy—penitent privilege in other states

    The court, in reviewing the application of the clergy—penitent privilege in other states, made the following observations:

    Nearly every jurisdiction in the United States has recognized a clergy—communicant privilege and, like Pennsylvania, requires the communication to have been motivated by penitential or spiritual considerations. Although the statutes establishing the privilege vary in language from state to state, the most prevalent feature prescribed by the typical statute is that the communication be made to a member of the clergy in the course of “discipline enjoined” by his or her denomination. Judicial interpretation of the meaning of “discipline enjoined” by the denomination has ranged from a narrow construction limiting the privilege to doctrinally required confessions, to a broader application to the practice of providing religious guidance, admonishment or advice. In either case, the privilege applies only to confidential communications to a member of the clergy acting in a spiritual capacity ….

    Our review of the relevant case law reveals no jurisdiction extending the privilege to communications that are not penitential or spiritual in nature. Pursuant to Pennsylvania law embodied in [the three cases summarized above], application of the clergy—communicant privilege is not based solely on the clergy’s status, but whether the communication was made in confidence in the context of a penitential or spiritual matter. By seeking to eliminate the requirement of a confessional or spiritual relationship between the communicant and the clergy person, the Diocese would so broadly construe the meaning of information acquired “in the course of [a clergyman’s] duties” as to effectively extend the privilege to communications involving entirely secular concerns. Contrary to the Diocese’s contention, limiting the privilege to communications penitential or spiritual in nature does not “insert” non—existent language into the statute. Instead, this requirement provides a rational and well—established interpretation of confidential information acquired “in the course of [a clergyman’s] duties.”

    The clergy—penitent privilege-the critical question

    The court concluded that in deciding whether or not a communication made to a minister is protected by the clergy—penitent privilege, there is a single question that must be answered:

    We, therefore, hold that application of the privilege distills to a single inquiry: whether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor. Accordingly, confidential communications to a member of the clergy, even for counseling or solace, do not fall within the protections of the privilege unless motivated by spiritual or penitential considerations. Likewise, the privilege does not protect information regarding the manner in which a religious institution conducts its affairs; nor does the privilege protect information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes.

    Application of the clergy—penitent privilege to internal church records

    The court then addressed the question of whether internal church documents can be protected by the privilege. More specifically, could the Diocese refuse to turn over the documents in question on the ground that they are protected from disclosure by the privilege? The Diocese asserted that all of the documents in question would have been obtained in confidence by the Bishop or other clergy in the course of their duties and were maintained in the confidential diocesan archives. The Diocese filed an affidavit that states in part:

    The bishop fulfills [his] duties in conjunction with his priests, over whom he exercises hierarchical authority. Thus, a bishop maintains a special relationship with his priests. He provides primary support and guidance for them concerning their spiritual lives and the faithful performance of their mission within the Church. Free, frank and confidential communication between the bishop and his priests must be protected so that the bishop can fulfill his obligations to his priests and the faithful under the prescriptions of Canon Law. A bishop must be able to candidly discuss with a priest his character, talents, spiritual life, health, and pastoral or familial problems and concerns in order to be able to assign the priest to compatible duties and to provide him with appropriate guidance in the conduct of his affairs and ministry to the faithful.

    The court did not agree that this affidavit demonstrated that the documents were privileged:

    The affidavit refers only to the hierarchical structure of the Roman Catholic Church and in general terms to the Bishop’s duties. The affidavit fails to indicate whether the precise information subject to the discovery request was, in fact, acquired by the Bishop or Diocesan representatives secretly and in confidence while acting in their capacity as confessors or spiritual advisors. We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes.

    In particular, the court noted that the affidavit failed to explain why the priests personnel records, correspondence, diaries and other similar documents are protected by the privilege. In addition, “the Diocese has not demonstrated how any letters, reports or records relating to allegations of misconduct or substance abuse of [the priest], particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege.”

    Because the Diocese failed to demonstrate that the documents were protected by the clergy—penitent privilege, the trial court “properly directed the Diocese to produce the documents to the trial court” for a confidential review.

    The court concluded that “to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment or non—confessional admissions of misconduct by [the priest], they are discoverable.”

    First amendment guaranty of religious freedom

    The court rejected the Diocese’s argument that disclosure of its archival documents violates its right to the free exercise of religion as protected by the federal and state constitutions and the Religious Freedom Restoration Act. In general, the government may only “substantially burden” the exercise of religion if it furthers a “compelling governmental interest” and the burden is the “least restrictive means” of advancing that interest.

    The Diocese insisted that the release of archival documents, which are deemed confidential pursuant to canon law, violates its right to religious freedom. Specifically, it asserted that canon law requires the maintenance of a separate archive for the safeguarding of confidential information and prohibits anyone, including the bishop, from removing documents from that archive and disclosing their contents.

    The court did not question the fact that the Diocese’s refusal to produce documents in violation of canon law “is rooted in a sincerely held religious belief.” However, it concluded that this burden on the Diocese’s religious freedom “furthers a compelling governmental interest by the least restrictive means available.” It noted that “a defendant in a criminal case has a right to discover material evidence, and the state has a compelling interest in pursuing the truth in a criminal matter.” And, although a confidential review of the documents by the trial judge to determine whether any are privileged “may cause a limited exposure of privileged information to the trial court, a court order limiting discovery to relevant, non—privileged documents advances this compelling governmental interest in the least restrictive way.” As a result, “the compelled production of documents for [confidential] review and the discovery of documents deemed relevant and non—privileged does not impermissibly intrude upon the Diocese’s exercise of its religious beliefs and practices.”

    Relevance to other churches and ministers

    What is the significance of this case to other ministers and churches? Obviously, the decision by the Pennsylvania Supreme Court has limited effect. It will not be binding on any court outside of the State of Pennsylvania. Nevertheless, the decision represents an extended discussion of the clergy—penitent privilege, and it is one of the few cases to address the application of the privilege to documents. As a result, it may be given special consideration by other courts. For this reason, the case merits serious study by church leaders in every state. With these factors in mind, consider the following:

    1. Evaluating whether communications are privileged-the courts one—sentence test. The court concluded that a single question can determine whether or not a communication to a minister is covered by the clergy—penitent privilege: “[W]hether the communicant disclosed information in confidence to a member of the clergy in his or her capacity as confessor or spiritual advisor.” As a result, “confidential communications to a member of the clergy, even for counseling or solace, do not fall within the protections of the privilege unless motivated by spiritual or penitential considerations,” and “the privilege does not protect information regarding the manner in which a religious institution conducts its affairs; nor does the privilege protect information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes.”

    • Example. Jack meets with his minister to discuss a church project that he is coordinating. Statements made by Jack during this meeting are not protected by the clergy—penitent privilege, since they were not made to the minister while acting in a professional capacity as a spiritual advisor.

    • Example. Same facts as the previous example, except that at the end of the meeting Jack informs the minister that he has “something else” to tell him. He recounts how he embezzled funds from the church while counting offerings over the past several months. There is no reason why Jacks statement cannot be privileged. It is true that the purpose of the meeting had nothing to do with seeking spiritual advice. However, this does not mean that the purpose or nature of the conversation between Jack and his pastor was static and unchangeable. When Jack decided to change the topic and address his acts of embezzlement, the nature of the meeting changed. The pastor now was being consulted in his capacity as a spiritual advisor.

    • Key Point. Often, it is not clear what motive a person has in contacting a minister. If there is any possibility that a minister may be subpoenaed at a later time to disclose what was said during a conversation, then the minister can help to establish whether or not the conversation was privileged by simply asking the individual (before, during, or at the end of the conversation) the following question: “Are you communicating with me in my professional capacity as a spiritual advisor?”

    2. Documents and records. What about church documents and records? When can they be protected from disclosure by the clergy—penitent privilege? The Pennsylvania Supreme Court reached the following conclusions:

    • “[T]he privilege does not protect information regarding the manner in which a religious institution conducts its affairs.”

    • The privilege does not protect “information acquired by a religious institution through independent investigations not involving communications with a member of the clergy for penitential or spiritual purposes.”

    • “[A]pplication of the clergy—communicant privilege is not based solely on the clergy’s status, but whether the communication was made in confidence in the context of a penitential or spiritual matter. By seeking to eliminate the requirement of a confessional or spiritual relationship between the communicant and the clergy person, the Diocese would so broadly construe the meaning of information acquired `in the course of [a clergyman’s] duties as to effectively extend the privilege to communications involving entirely secular concerns.”

    • Confidential, internal church documents are not automatically protected from disclosure on the basis of the clergy—penitent privilege. The test to apply in determining whether or not internal church documents are privileged was stated by the court as follows: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    • “We cannot assume that all communications with or between members of the clergy occur in confidence and for confessional or spiritual purposes.”

    • The court noted that the Diocese failed to demonstrate how any letters, reports or records relating to allegations of misconduct or substance abuse by the deceased priest, and “particularly documents reflecting investigations of misconduct or disciplinary actions, fall within the protection of the privilege.”

    • “We hold that to the extent the requested documents reflect relevant disciplinary action, investigations of misconduct, substance abuse treatment and/or non—confessional admissions of misconduct by [the priest], they are discoverable.”

    3. Examples. The court’s discussion of the application of the clergy—penitent privilege to documents and records is illustrated by the following examples:

    • Example. A church member is audited by the IRS, and her charitable contributions to her church are questioned. The IRS issues a subpoena to the church, requesting disclosure of the womans contribution records for the past three years. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they fail the Courts test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    • Example. A church dismisses an employee. The former employee later sues the church, alleging that her dismissal was discriminatory and wrongful. She serves a subpoena on the church, demanding disclosure of her personnel file and any other internal church record pertaining to her dismissal. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they fail the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    • Example. A pastor, along with his church and a denominational agency, are sued by a woman who claims that the pastor took advantage of her emotional vulnerability during a counseling relationship by engaging in sexual relations. The woman serves a subpoena on the denominational agency, demanding disclosure of any former disciplinary actions or allegations of misconduct involving the pastor. It is doubtful that any of these requested documents would be protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they likely will fail the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    • Example. A minor is sexually molested by a volunteer church worker. The minors parents sue the church. They serve a subpoena on the church demanding disclosure of any screening form or application used by the church when it began using the volunteer worker, in addition to any policies the church has adopted pertaining to the screening and supervision of youth activities and workers. These documents are not protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they fail the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    • Example. A woman seeks out her pastor for marriage counseling. The woman discontinues the counseling after several sessions, and later sues her husband for a divorce. The husband serves a subpoena on the church, demanding that the pastor turn over all of the counseling notes that he compiled while counseling the woman. These documents probably are protected from disclosure by the clergy—penitent privilege according to the Pennsylvania Supreme Court’s decision, since they likely satisfy the Court’s test: Was the information requested by a subpoena acquired by a minister “in confidence while acting in [his or her] capacity as a confessor or spiritual advisor”?

    © Copyright 1997, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m12 m33 c0497

Legal Developments

“Secret Archives” Cannot Prevent Some Records from Subpoena

Court ruling applies to documents that do not interfere with religious freedom.

Richard R. Hammar, Attorney, CPA
Bio

• Key point: Churches cannot protect certain records from the subpoena power by placing them in a "secret archive."

• Can a church avoid inspection of its records in a civil lawsuit by placing them in a location that it designates as a "secret archive"? No, concluded an Ohio appeals court. A Catholic priest, and his church and diocese, were sued on account of the alleged sexual molestation of a minor child by the priest. The lawsuit claimed that the church and diocese were legally responsible for the priest's behavior on the basis of negligent hiring and negligent supervision. In preparation for trial the victim's attorney sought to inspect documents in the possession of the diocese pertaining to the sexual misconduct of the priest, including any notes or summaries made by psychologists with whom the priest had consulted. The diocese acknowledged that 5 years before the priest molested the victim it learned of another incident of molestation by the same priest, and that the matter had been referred to a personnel office for investigation. As a result of this investigation, the priest was required to receive regular and ongoing counseling. The diocese refused to disclose any of these documents. It asserted that they were all contained in a secret archive file that was not subject to inspection. This position was based on Canon 489 of the law of the Roman Catholic Church which states: "There is to be a secret archive … or at least a safe or file in the ordinary archive, completely closed and locked and which cannot be removed from the place" for those documents that are to be "kept and protected most securely." Canon 490 states further that "only the bishop" of the diocese may possess the key to the secret archive and that "documents are not to be removed from the secret archive or safe." The diocese also claimed that the notes from psychologists were protected from disclosure by the "physician-patient" privilege.

A trial court ordered the diocese to produce the documents for a private review by the judge to determine whether any of them should be disclosed in court. The diocese immediately appealed this order, claiming that it violated the first amendment's guaranty of religious freedom. A state appeals court agreed with the trial court, and ordered the diocese to turn over the requested information. The court began its opinion by observing that a party to a lawsuit has the legal right to "discover" or inspect any document in the possession of another party, so long as the document is relevant to the lawsuit and not privileged. The court concluded that the requested information in this case was clearly relevant to the lawsuit, and ordered the diocese to produce them for the trial court's inspection. The court acknowledged that the United States Supreme Court has upheld "the command of the first amendment not to interfere in disputes concerning religious doctrine, discipline, faith, or internal organization." However, it found nothing in the order of the trial judge in this case for a private inspection of the records of the diocese that interfered with or entangled the state "in the rights to believe and practice the religion of one's choice, which are the freedoms protected by the first amendment." The court quoted with approval from an earlier Pennsylvania case:

Merely because Canon 489 is controlling in the internal operations of the affairs of the Church does not mean that it permits evidence pertaining to sexual molestation of children by priests to be secreted and shielded from discovery which is otherwise proper ….

Free exercise of religion, as it its encapsulated in the first amendment, embraces two concepts—freedom to believe and freedom to act. The first is absolute, but the second remains subject to regulations for the protection of society …. We are not concerned here with the former; [the Church] and other congregation members remain unimpeded in the cerebral sphere. The sole issue is whether the Church may refrain from producing documents under a narrowed court order. There is no doubt that this constitutes conduct. Decisions expressing judicial reluctance to become entangled in internal church affairs are also inapplicable. Those cases are premised on a perceived danger that in resolving intra-church disputes the state will become entangled in essentially religious controversies or intervene on behalf of groups espousing particular doctrinal beliefs. Such considerations are not applicable to purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization …. Hutchison v. Luddy, 606 A.2d 905 (Pa.Super. 1992).

The court then made an interesting observation. It noted that the Ohio child abuse reporting law includes in the listing of persons who are required to report abuse "person(s) rendering spiritual treatment through prayer in accordance with the tenets of a well-recognized religion, who is acting in his official or professional capacity …." The court then observed that the child abuse reporting law contained no exception "for communications made as penitent to a clergy member as there are for communications made from patient to physician or client to attorney." The court "read from this statute a strong and clear legislative intent that the church is to yield to the state on issues such as these." In other words, the fact that clergy in some cases are mandatory reporters of child abuse under state law supports the view that church records should not be immune from disclosure in civil litigation.

The court did conclude that notes in the records of the diocese that were taken by psychologists and psychiatrists who interviewed the offending priest would be protected from disclosure by the physician-patient privilege if the priest "was in counseling with a psychiatrist or psychologist for the purposes of treatment." On the other hand, if the priest's counseling with a psychologist or psychiatrist was not for treatment, but rather for the diocese "to determine his future as a priest or how it intended to handle his problems," then the records would not be privileged. Niemann v. Cooley, 637 N.E.2d 943 (Ohio App. 1 Dist. 1994). 3G1, 8C2

See Also: Were the Statements Intended to be Communications? | Inspection

© Copyright 1995, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m12 c0595

Legal Developments

Court: Diocese Does Not Have to Turn Over Records

Montana law has strict protection of privacy.

Richard R. Hammar, Attorney, CPA
Bio

• Key point: Confidential church personnel records ordinarily must be disclosed in response to a subpoena. However, there are limited exceptions to this rule.

• The Montana Supreme Court ruled that a Catholic diocese did not have to turn over its personnel records on a priest who was charged with deviate sexual misconduct. A priest was charged with two counts of deviate sexual misconduct. He pled not guilty to the charges, and presented the prosecution with a list of 15 character witnesses who were prepared to testify in his favor concerning his exemplary behavior. The prosecutor sought a subpoena to obtain the priest's personnel file from the diocese. The purpose of the subpoena was to seek reports of similar misconduct, disciplinary actions, transfers, and potential witnesses who could be called on to rebut the priest's 15 character witnesses. A judge issued the subpoena and it was delivered to the diocese, but the diocese refused to surrender any of its personnel records. The diocese agreed to a private ("in camera") inspection of the personnel file in the judge's chambers in the presence of the chancellor of the diocese. The file was nearly two inches thick, and was marked "confidential—to be opened by the bishop of the diocese only." The judge made the following comments while opening and reviewing the file: "I open this with reluctance. All right. The court has in summary fashion reviewed the documents. I will say on the record, I consider these to be highly personal documents, private documents of the diocese …. Any my impression [is] that these documents will not be disclosed." The judge later explained his decision as follows: "[T]he diocese has compelling rights of privacy to its personnel files and all of the documents contained therein. The file is clearly marked to be private …. We have the strongest privacy laws in this state of all of the states, and I find that the [prosecution] cannot show compelling interest to crack open private church documents such as these." This decision was appealed by the prosecutor, and the state supreme court upheld the trial judge's decision in favor of the diocese. The court acknowledged that the subpoena power is very broad. However, it not without limits. One of those limits pertains to some personnel records. The court observed: "When discovery of documents such as personnel records are at issue, privacy rights are undoubtedly at stake. Montana adheres to one of the most stringent protections of its citizens' right to privacy in the country. Montana's treatment of privacy rights is more strict than that offered by the federal constitution. The privacy interest in [the priest's] personnel records at the Catholic diocese must be weighed against the state's need to discover the same." The court noted that under the state constitution, privacy interests are protected so long as a party has an expectation of privacy and "society is willing to recognize that expectation as reasonable." The court concluded that the personnel records of the diocese satisfied this test, and accordingly they did not have to be turned over to the prosecutor in response to the subpoena. However, the court pointed out that there is no "blanket unavailability" of such records to the state, and that each case must be evaluated independently. Further, the court pointed out that the personnel files of the diocese were not the prosecutor's only means of locating information. Much of the information sought by the prosecutor could be obtained by conducting an independent investigation. In summary, this ruling is a natural result of the increasing tendency of courts and legislatures to protect the "right of privacy," and it will be of interest to other churches and denominational agencies both in and outside of the state of Montana. Ironically, the same right (privacy) that is the basis for the limited legalization of abortion protected the records of the Catholic diocese in this case from mandatory disclosure to the state. State v. Burns, 830 P.2d 1318 (Mont. 1992).

See Also: Church Records – Inspection

© Copyright 1993, 1998 by Church Law & Tax Report. All rights reserved. This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is provided with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional service. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Church Law & Tax Report, PO Box 1098, Matthews, NC 28106. Reference Code: m26 m67 m43 c0493

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